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‘FALSE AND DISTORTED’

New York City

Christopher Hitchens’s diatribe on Professor Elie Wiesel’s essay on Jerusalem in the New York Times is a false and distorted evaluation based on a two-page essay by a distinguished author of more than forty books [“Minority Report,” Feb. 19]. Hitchens does not even mention that Wiesel won the 1986 Nobel Peace Prize. Had he read the Nobel committee’s citation, he would have discovered that Wiesel was “a witness for truth and justice,” and that “his aim is not to gain the world’s sympathy for the victims or the survivors. His aim is to awaken our conscience because our indifference to evil makes us partners in the crime.” The committee cites “this particular human spirit’s victory over the powers of death and degradation.” It is for the readers of The Nation to choose between Christopher Hitchens and the Norwegian Peace Committee.

BERNARD D. FISCHMAN

COURTING SEGREGATION

Washington, D.C.

Lewis Steel has had an admirable career as a civil rights lawyer, and I agree with much of what he says in his review of James T. Patterson’s book about Brown v. Board of Education [“Separate and Unequal, By Design,” Feb. 5]. But from my vantage point as a lawyer who began a forty-five-year career in civil rights as a junior attorney on Thurgood Marshall’s staff at the NAACP Legal Defense and Educational Fund in 1954, I think Steel is wrong on two key points.

First, I believe he is wrong to focus the primary blame for failure to implement the Supreme Court’s historic 1954 Brown decision on the “all deliberate speed” remedy decision in Brown II in 1955. While the delays permitted by the Court were a great setback, the real culprits were President Eisenhower and the Congress, in failing to support the 1954 decision and in fact undermining it. Eisenhower said law could not “change the hearts and minds of men” and later allowed that his greatest mistakes were in appointing Earl Warren and William Brennan to the Court. Congress was most notable for being the birthplace of the Southern Manifesto, in which Southern legislators called for resistance to the Court’s decision. The abdications of the executive and legislative branches created the vacuum that allowed the era of “massive resistance” to take root.

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While Hugo Black later said that had he known in advance about the lack of support he would not have agreed to “all deliberate speed,” it is doubtful that the Court, operating without allies, would have been obeyed if it called for immediate compliance. Moreover, Steel mischaracterizes Brown II when he says that it assumed only “personal” and not “group” rights for black children. The Court called not just for the admission of black children to white schools but for a “transition to a racially nondiscriminatory school system.” Nor did it imply that whites as a group had a right to delay a remedy. Indeed, the Court said that constitutional principles would not yield “simply because of disagreement with them,” a point the Court emphatically reinforced in the Little Rock decision three years later.

Finally on this point, I know of no credible evidence to support Steel’s thesis that Chief Justice Warren made a deal that the Court would issue “an all deliberate speed” remedy in return for unanimity in Brown I. The Court did agree to put off the remedy decision for a year, nothing more. And Steel’s statement that the author “should have concluded that the second ruling eviscerated the first” exhibits an extraordinary misunderstanding of history. Brown called for the end of the racial caste system that had been erected to replace slavery, and whatever strategic mistakes were made in its aftermath, the decision was the beginning of the modern civil rights era.

Steel’s second major argument is that “the Court’s failure in the 1960s to confront school segregation, Northern style, doomed the struggle for integration.” The question of how to approach segregation in Northern public schools was difficult, to say the least, and involved a dispute between two lawyers–Thurgood Marshall and Judge Robert Carter–who were my first bosses and for whom I have the greatest respect. Marshall believed from a strategic viewpoint that bringing litigation in the North might alienate Northern supporters of desegregation and that it would be unwise to open up a second front when massive resistance had civil rights groups on the defensive on the first front. Carter believed that children were facing problems that could not wait. In addition, while Earl Warren’s opinion in Brown stressed educational harm, many lawyers (myself included) believed that the heart of the decision rested on the racial intent of segregation laws. In fact, racial intent in the North underlay much of the segregation that existed, but because it was not reflected in a segregation law, it took time and effort to prove a case. So the Court did not confront the issue until 1973, when it decided the Denver case, issuing a strong opinion for systemwide desegregation.

Unfortunately, by this time many central- city school districts had become almost entirely African-American or Hispanic-American as whites moved to suburbs, where housing segregation served as a barrier to minorities. When the Burger Court treated the city line as an almost impermeable barrier to desegregation, the battle was largely lost. But there is little reason to suppose that the result would have been different if the Warren Court had taken on Northern desegregation earlier.

What strikes me as odd in all this is that Steel, who appears to recognize the entrenched character of US racial discrimination, should think that the Court ever had a magic wand to solve the problem. Progress has come, and it has been very substantial, in part because public officials like Earl Warren and Lyndon Johnson stood up to their responsibilities and made possible Brown v. Board of Education and the Civil Rights Acts of 1964 and 1965. But mainly these public acts enabled people to empower themselves. Today, the largest barriers to opportunity are those faced by people of color who live in conditions of poverty and whose lives have been largely untouched by the civil rights revolution. As always, the answers lie in many strategies and forums–in organization and community action, in legislation at every level and, yes, in the federal and state courts. We ought not underestimate the challenge, but it will ill serve the effort if we do not recognize how far we have come and how we have reached this point.

WILLIAM L. TAYLOR

STEEL REPLIES

New York City

Before turning to the main point of Bill Taylor’s letter, let me clear away the historical underbrush. Contrary to Taylor’s belief that there is no “credible evidence” to support my statement that Chief Justice Earl Warren lobbied those Justices who were resistant or hesitating to join his first Brown decision by agreeing to put off the issue of remedy, “allowing the South’s segregated school districts time to change their ways,” both Mark V. Tushnet in Making Civil Rights Law and Richard Kluger in Simple Justice provide evidence. Kluger describes Warren’s lobbying efforts in some detail and states with regard to the last holdout, Stanley Reed, that “the only condition [Reed] extracted from Warren for going along [his law clerk believed] was a pledge that the Court implementation decree [Brown II] would allow segregation to be dismantled gradually instead of being wrenched apart.” Kluger, as does Tushnet, states that Warren was constantly meeting with the hesitant Justices individually and that he directed discussions to the concept of the remedy before the merits were decided. As Tushnet concluded, “The Court achieved agreement on the merits in large measure because most justices had a vague idea that they could avoid difficulty by allowing desegregation to occur gradually.” Clearly, it was Warren who conveyed that idea.

Out of this understanding the “all deliberate speed” formula emerged in Brown II. While Brown II alluded to group rights as well as personal rights, Jack Greenberg states in Crusaders in the Courts that “the Court spoke with forked tongue.”

Now to Taylor’s main criticism. Taylor places the major blame for the failure of school desegregation on Eisenhower and Congress and extols Warren’s leadership. For me, there is enough blame spiraling throughout our history to make it unnecessary to engage in apportionment. And there is no “magic wand.” Only relentless effort can ameliorate, and perhaps one day overcome, the US brand of racism. And like Taylor, I recognize Brown I as an important stepping stone in this struggle.

However, mythology about the Court ill serves us. As our highest judicial body, our constitutional court and one of the organs of government that made Jim Crow possible in the first place, the Supreme Court had an obligation to attempt to undo its separate-and-unequal handiwork promptly. By folding up its tent and retreating after Brown I, the Supreme Court sent a message that it would look the other way with regard to one of the most critical bulwarks of racism–school segregation. That gave support to those who engaged in resistance. Even during the Little Rock confrontation, the Supreme Court in 1958 failed to indicate that “all deliberate speed” must come to an end.

Finally, Taylor appears to say that Thurgood Marshall soft-pedaled Northern school segregation to avoid alienating supporters when Robert Carter began to attack it. This statement strikes me as highly unlikely. When Carter opened up the second front against Northern school segregation, Marshall was already sitting as a federal circuit court judge and would in all likelihood have refrained from talking about cases that might have come before him. Perhaps Jack Greenberg, who had taken over the leadership of the NAACP LDEF and steered clear of Northern-style segregation, may have held this view, and this may be the cause of Taylor’s confusion. In Crusaders in the Courts, however, Greenberg says only that while he felt Carter’s approach “was entirely logical,” he thought it “wouldn’t wash.” As Taylor notes, Carter believed “that [black] children were facing problems [centuries of segregation and discrimination] that could not wait.” To Carter, losing those children in inferior schools for another generation without trying was little different from trying and losing, as he explained to me with more than a little hint of impatience. Even when we did lose in the lower federal courts during those years, Carter maintained his belief that eventually the Supreme Court would take one of our cases and do the right thing. It was not to be.

To this day all of us, but especially African-Americans, suffer because of the Court’s contribution to our nation’s failure to do little more than superficially desegregate our schools.

LEWIS M. STEEL

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